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Saturday, August 11, 2007

Supporters of the Fairness Doctrine argued then, and now, that broadcast speech is uniquely subject to government regulation because it is carried over the “publicly owned airwaves.” According to this argument, the scarcity of spots on radio and television spectrum justified government regulation, exempted broadcast speech from the First Amendment protections enjoyed by newspapers, the internet, or disseminated on cable, or via satellite.

For “progressive” advocates of the Fairness Doctrine, broadcast stands alone.

But should it?

The First Amendment was written at a time when ideas could be expressed and disseminated in only two ways: through speech or through the press. The first amendment absolutely bars Congress from limiting either sort of expression. But progressives, who are usually enamored of the idea of a “living constitution,” ironically become the strictest of strict constructionists when they argue that because broadcast is not specifically mentioned, the government has the power to gag speech transmitted through the airwaves.

Can anyone seriously doubt that if radio had existed in colonial times, the Founders would not have extended the ban on government speech suppression to broadcast as well? By the constrained logic of the left that excluded broadcasting from constitutional protection, there is no constitutional authorization for the federal government to create an air force, since there were no air planes in 1787, and no such force is explicitly mentioned in the constitution.

But does the fact that broadcaster use “public owned airwaves” justify government regulation of the content of their speech?

Indeed, the argument that the airwaves are “public,” undermines itself. Far from granting the government greater powers for regulation, the fact that airwaves are public ought to give such speech even greater protection. Private individuals or entities can limit speech, but not the government: speech in a private mall or office can be regulated; but speech in the public square enjoys special protections, precisely because it is public, where the powers of the censor are the most tightly constrained.

Liberals see conservative dominance of one medium, talk radio, as problematic without seeing the dominance of other mediums by liberals as problematic. They also do not see that the different broadcast mediums are themselves in competition, and that dominance of one medium by a particular ideology is hardly a competitive advantage in this age of varied and niche media.

If the conservatives dominate talk radio and have a beachhead in cable news, it hardly constitutes a monopoly of political speech.

In the same column,

So now liberals are pushing the idea again the airwaves are a public accommodation and that in the "public interest" radio stations should offer balanced programming, wording taken from a 1969 Supreme Court ruling.

I’ve always thought of the "Public Interest" as a neo-conservative magazine. I never realized it really means the liberal agenda.

But it’s also language that ignores subsequent Supreme Court rulings in 1974 indicating the Fairness Doctrine really hampered public discourse and in 1984 that the scarcity rationale for regulating content of the airwaves was questionable. Given the current plethora of media outlets and the conservative cast of the Supreme Court, do liberals really believe their effort to dictate on-air content will pass the court’s scrutiny?